United States v. Elmer

The opinion of the court was delivered by: John A. Mendez, United States District Judge

STIPULATED ORDER FOR PERMANENT INJUNCTION

The United States has filed a complaint for permanent injunction under 26 U.S.C. §§ 7407, 7408 and 7402(a) against Bradley J. Elmer, Chris J. Elmer, Jeffrey DeLany, Ryan Elmer, Michael Boehrer (the "ATP Tax Preparers"), and Associated Tax Planners, Inc. ("ATP")(collectively, the "ATP Defendants"). The parties entered into a stipulated consent preliminary injunction in April of 2009 that was ordered by this Court on April 2, 2009 (Docket No. 30), and have since that time taken discovery in this action.

Notwithstanding the ATP Defendants' denial of the allegations herein, the parties have agreed to the terms of this Stipulated Order of Permanent Injunction, and the ATP Defendants consent to be bound by its terms and to its entry without further notice. The ATP Defendants waive the entry of findings of fact and conclusions of law under Rules 52 and 65 of the Federal Rules of Civil Procedure. The parties understand that this order constitutes the final judgment in this matter, waive the right to appeal from this judgment, and agree to bear their respective costs, including any attorneys' fees or other expenses of this litigation. Nothing in this order shall constitute an admission of liability by the ATP Defendants of any of the matters alleged in the Complaint or in the United States' Motion for Preliminary Injunction. In consenting to be bound by this Order and perform the obligations set forth herein, the ATP Defendants do not waive any rights they have regarding this matter under the Fifth Amendment to the U.S. Constitution.

The ATP Defendants further understand and agree that the Court has jurisdiction over this matter for the purposes of implementing and enforcing this order, and understand that if they violate its terms, they may be subject to civil and criminal sanctions for contempt of court.

ORDER

1. IT IS HEREBY ORDERED that pursuant to Internal Revenue Code §§ 7402, 7407, and 7408, Defendant Chris Elmer is, beginning October 15, 2010, permanently enjoined from directly or indirectly acting as a federal tax return preparer, or providing assistance or advice in the preparation or filing of federal tax returns for any person or entity other than himself, or appearing as a representative on behalf of any person or entity whose tax liability is under examination or investigation by the Internal Revenue Service or the Department of Justice; and

2. IT IS HEREBY ORDERED that pursuant to I.R.C. §§ 7402, 7407, and 7408, the ATP Defendants, individually and doing business as ATP or any other entity, and their representatives, agents, servants, employees, and those persons in active concert or participation with them, are hereby permanently enjoined from directly or indirectly:

(1) Engaging in any conduct subject to penalty under I.R.C. § 6694(a), i.e., preparing any return or claim of refund with respect to which any part of an understatement of liability is due to an "unreasonable position," meaning a position where "the tax return preparer knew (or reasonably should have known) of the position," there was no "reasonable belief that the position would more likely than not be sustained on its merits," and "the position was not disclosed as provided in section 6662(d)(2)(B)(ii)" or "there was no reasonable basis for the position";

(2) Engaging in conduct subject to penalty under I.R.C. § 6694(b), i.e., by preparing any return or claim for refund with respect to which any part of an understatement of liability is due to willful or reckless conduct on the part of the relevant return preparer;

(3) Engaging in conduct subject to penalty under I.R.C. § 6700(a), i.e., by organizing or participating in the organization of any plan or arrangement and in connection therewith making or furnishing or causing another person to make or furnish a statement with respect to the securing of a tax benefit that the ATP Defendants know or have reason to know is false or fraudulent;

(4) Engaging in conduct subject to penalty under I.R.C. § 6701, i.e., by aiding, assisting in, procuring, or advising with respect to the preparation of any portion of a return, affidavit, claim or other document, when the ATP Defendants know or have reason to believe that portion will be used in connection with a material matter arising under the federal tax law, and the ATP Defendants know that the relevant portion will result in the material understatement of the liability of another person;

(5) Engaging in any other conduct that interferes with the administration and enforcement of the internal revenue laws; and

(6) Engaging in any activity subject to penalty under any other section of the Internal Revenue Code; and

3. IT IS FURTHER ORDERED that (excepting Defendant Chris Elmer, to whom this paragraph of the Order is inapplicable) the ATP Defendants shall, ...

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